DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 243/09
Aman Bangia
S/o Sh. S.K. Bangia
42-A, Sidhartha Extension,
Pocket-C, New Delhi – 110014
And
S.K. Bangia
S/o Late Shri B.N. Bangia
42-A, Sidhartha Extension,
Pocket-C, New Delhi – 110014 -Complainants
Vs
1. M/s Raheja Developers P. Ltd. and Ors
215-216, “Rectangle One”
D-4, District Centre,
Saket, New Delhi – 110017
2. Sh. Navin M. Raheja,
Managing Director,
M/s Raheja Developers P. Ltd. and Ors
215-216, “Rectangle One”
D-4, District Centre,
Saket, New Delhi – 110017 -Opposite Parties
Date of Institution: 16.03.2009 Date of Order: 10.06.2016
Coram:
N.K. Goel, President
Naina Bakshi, Member
S.S. Fonia, Member
O R D E R
S.S. Fonia, Member
Facts gathered from the complaint and other connected documents reveal that complainants booked a three bed room flat measuring 1755 sq. ft. in OP’s project “ATHARVA” at an agreed cost of Rs. 55,23,775/- plus registration charges with OPs and paid booking amount of Rs. 4,77,000/- along with the application form by means of cheque No. 589888 dated 12.12.2007 drawn on HDFC Bank, New Friends Colony, New Delhi. Thereafter a post dated cheque No. 589889 dated 12.2.2008 for Rs. 7,15,500/- drawn on the same back was also tendered which was acknowledged by the OPs vide receipt No. ATH/00428 dated 15.2.2008. Thereafter, the complainants visited OPs’ office and requested for a copy of the sanctioned plan of the complex, copy of licence and copy of title deeds for availing bank loan. The OPs vide letter dated 2.9.2008 communicated to complainants that the building plans have been approved after licence by the Director, Town & Country Planning, Haryana. The Bhoomi Poojan was solemnized on 29.7.2008 and it was agreed that after signing the agreement to sell allotment will be made. The OPs further demanded payment of Rs. 3,75,575/-. Complainant-2 on 4.9.2008 visited OPs’ office where he was given a copy of title deed of the project (Atharva) but not the copy of sanctioned plan. On 6.9.2008 the complainants requested OP-2 to provide copy of plan to enable them to get loan from the bank. However, despite several visits and correspondence, the OPs did not provide them the requisite documents for availing bank loan. The OPs vide their letter dated 10.10.08 inter-alia stated that “even if all the above mentioned points fail to satisfy you, we would request you to immediately apply for refund and part on amicable grounds”. Complainants allege that advise of OPs to apply for refund was only a motive to deprive the complainants on account of upward revision of rates by the OPs by Rs. 372/- per sq. ft. from Rs. 2878/- per sq. ft. to Rs. 3050/- per sq. ft. on the basic sales price so that they could enrich themselves by Rs. 6,52,860/- in case the complainants opt for refund. Complainants further state that the OPs vide their letter dated 3.11.2008 demanded next instalment of Rs.2,88,680/- by 19.11.2008 with a threat that in case of non payment of instalment on the due date, interest @ 18% p.a. will be charged. Complainants could not get the loan from the bank in the absence of sanctioned plan and served a legal notice on the OPs on 4.11.08 stating that in the absence of supply of sanction plan by the OPs penal interest should not be charged from them. Thereafter, there was an inter se email dated 7.11.08 between the 2 officials of OPs stating that “he has also sent a legal notice, I think the way forward is you call him to the office and speak to him he is creating nuisance and has involved 20 other clients with him (ISKO THANDA KAR DO)”. There had been number of communications exchanged between the complainants and the OPs and on 12.11.2008 the Deputy Manager (Legal) of the OP sent a communication to the complainants inter-alia stating that “this allotment of apartment is entirely at the discretion of the Company and the Company reserves its right to cancel the allotment after refunding the payment along with interest without assigning any reason thereof within 60 days of the execution of the agreement”. In the same letter a cheque bearing no. 417141 dated 12.11.2008 drawn on ICICI Bank for Rs. 16,50,579/- towards refund of amount payable to complainants along with interest @ 9% was also enclosed. Complainants state that OPs’ letter of 12.11.2008 is pre-dated to 17.11.2008 with a view to make it within 60 days of the execution of Builders Buyer Agreement so that they could cancel the booking. The complainants served a legal notice dated 15.12.2008 upon OPs stating therein that “they got collected the cheque for Rs. 16,50,579/- under protest and without prejudice to their right for approaching appropriate Consumer Forum for recovery of difference of interest between 18% p.a. and 9% p.a. paid by the OP i.e. the rate at which the company recovers penal interest for delayed payment in terms of clause no. 3.13 of the Building Buyer Agreement dated 19.9.2008 on monthly compounding basis on the principle of equality and fairness amongst the executants of the agreement” but the OPs did not give any response. Feeling aggrieved with the deficiency of service by the OPs, the complainants have moved this forum alongwith prayer for payment of difference in interest of amount of Rs. 2,14,579/- upto 28.2.09 and 18% p.a. interest with monthly rests in terms of clause no. 3.13 of the builder buyers agreement till the date of payment as per calculation sheet and Rs. 5 Lacs for mental torture and Rs. 51,000/- towards legal expenses.
OPs have filed written statement denying all the allegations on the main ground that complainants accepted the cheque of Rs. 16,50,579/- without any protest. Hence, prayer is for dismissal of the complaint.
Complainants have filed rejoinder reiterating the averments made in the complaint.
Complainant-2 has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Amit Asthana, AR has been filed in evidence on behalf of OPs.
Written arguments have been filed on behalf of the parties.
We have heard complainant-2 and have also gone through the record very carefully.
Now we straightway advert to the main issue whether the relief prayed for by the complainants is admissible or not?
Keeping in view the fact that the complainants have prayed for refund of interest between 18% (chargeable on delayed payment by the allottee to the OP) and 9% (actually paid) along with the compensation for mental agony and legal expenses, the mute question before us is acceptance of cheque of Rs. 16,50,579/- by the complainants without any protest or demur till a legal notice dated 15.12.2008 i.e. almost after 32 days of the issue of the cheque was served by the complainants upon the OP. In our considered opinion, the complainants should either have refused to accept the cheque or should have lodged the protest/demure immediately after receiving the cheque for Rs. 16,50,579/- rather than waiting for legal notice to be served upon the OPs after 32 days which smacks of sheer after thought. Therefore the only inference which we draw is that the complainants had accepted the payment of the interest of Rs. 2,14,579/- without any demur or protest immediately after receipt of the amount towards interest. Complainants have estopped themselves from their own conduct to give birth to the cause of action for lodging complaint. Therefore, there is no deficiency in service on the part of the OP.
In view of the above discussion, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
Announced on 10.06.2016
Case No. 243/09
10.06.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
